C. S. Evans & Co. v. Early & Daniel Co.

262 S.W. 970, 203 Ky. 618, 1924 Ky. LEXIS 968

• Court: Court of Appeals of Kentucky
• Decided: June 6, 1924
• Status: Published

Opinion

Opinion op the Court by

Judge O’Neal

Affirming.

This is the second appeal of this case, appellant being the defendant and appellee the plaintiff in the circuit court. Upon the former appeal a judgment for the defendant entered upon a jury’s verdict was reversed by this court upon the ground that the verdict was flagrantly against the evidence. Upon the return of the case to the lower court there was a retrial. The same state of facts was proven, largely by documentary evidence, and upon the plaintiff’s dismissing one item of damage claimed in its petition about which there was some conflict in the evidence, the court peremptorily instructed the jury to find a verdict for the plaintiff for the full amount sued for.

Prom that action of the court this appeal is prosecuted. It is not contended that the evidence upon the second trial differs in any respect from that upon the first, but defendant insists that its evidence was sufficient to raise an issue of fact and to entitle it to have that issue submitted to the jury. As the facts are fully set out in the former opinion of this court, reported in 191 Ky. 699, we will only briefly summarize them here.

In April, 1915, plaintiff purchased of defendant 8,000 bushels of No. 2 'red winter wheat at $1.59 per bushel f. o. b. Nicholasville, Kentucky, for shipment to Newport News, Virginia, subject to Newport News weights and inspection. About May 4th defendant shipped the wheat in eight carload lots to Newport News, and at the same time mailed to plaintiff bills of lading with drafts attached, which the latter paid. At Newport News four carloads were accepted and four rejected on account of garlic; plaintiff was notified by wire of the rejection and promptly, in turn, notified defendant both of the rejection and of its refusal to accept the wheat. Defendant failed or refused to take charge of the wheat after receiving this notice, and plaintiff thereby became liable for storage and other charges. It notified defendant that it would sell the wheat and it did sell it on the open market. It thereupon brought this suit to recover from defendant the sum of $2,034.87, which was the loss on the rejected wheat, $10.60 for shortage in the wheat, and $30.24 for failure of the defendant to load the cars to their full capacity.

!Jhn lower court being of the opinion upon the first trial either that there was a conflict in the testimony as to certain facts or that reasonable minds might differ as to the inferences to be drawn from the admitted facts, which were evidenced chiefly by letters and telegrams, submitted the case to the jury for its decision upon the facts. The jury found for the defendant, but upon the appeal taken by the plaintiff this court reversed the judgment entered upon that verdict for the reason that it was flagrantly against the evidence. Subsequently there was a retrial at which the same state of facts was proven. At the conclusion of all the evidence the lower court, either because it construed the former opinion of this court as, in effect, holding the plaintiff entitled to a peremptory instruction under the facts presented, or because it believed the defendant had wholly failed to establish a defense or contradict plaintiff’s evidence, peremptorily instructed the jury to find a verdict for the plaintiff.

After a careful review of the record upon this as well as the former appeal, we are convinced of the correctness of the court’s action. Defendant argues strenuously that the question of a peremptory instruction was not raised or discussed upon the first.appeal and this court was not called upon then to decide whether or not a peremptory instruction should have been given and that, therefore, the question was not before the court and the doctrine of the law of the case does not apply. Under the circumstances as they exist we do not feel it necessary to consider that proposition. Whether the lower court directed a verdict for the plaintiff because of the ■construction put upon the former opinion of this court, as counsel contend, or because it believed that under the facts presented the plaintiff was entitled to such an instruction, we are unable to determine from the record as there is nothing to indicate upon what theory the court based its ruling. Nor do we consider this material, since we are satisfied the evidence clearly entitled the plaintiff to a directed verdict; and the action of the court in so holding was proper whatever may have been the theory upon which it acted.

Nor do we mean to be understood as holding that where a judgment is reversed because it is flagrantly against the evidence, it necessarily follows that upon the same evidence appearing upon a retrial the party who secured the reversal is, as a matter of law, entitled to a peremptory instruction. Had there been a scintilla of evidence supporting the defense or from which reasonable men might have drawn different inferences, it would have been the duty of the trial court to have submitted those matters to the jury under proper instructions, even though a verdict for the defendant would have again been against the weight of the evidence. But that condition is not presented by the record, since defendant’s evidence wholly fails to raise any issue.of fact to be submitted to the jury.

It may be said further that while it is true the only question raised upon the former appeal was whether or hot the verdict was flagrantly against the evidence, nevertheless, it was necessary in the discussion and decision of that question for this court to, and it did, weigh and consider all of the evidence. Under the evidence then presented, which is the same as that now presented, this court was of the opinion, and so held, that every fact necessary to establish the plaintiff’s case had been proven and that the defendant had wholly failed to offer any probative evidence that either directly or by inference disproved or contradicted the evidence of the plaintiff. All of the evidence is fully stated and analyzed in detail in the opinion upon the first appeal, as are the reasons for the foregoing conclusions, and it is, therefore, not necessary to repeat them here. It is sufficient to say that we have again reviewed and considered the evidence and are convinced of the correctness of the conclusion we then reached, that is, that the plaintiff’s right to recover was established by uncontradicted evidence. It therefore follows that whatever may have been the basis for the ruling of the lower court, whether acting under its conception of the effect of the former opinion or not, it did not err in sustaining the plaintiff’s motion for a peremptory-instruction.

It will he noted that in our former opinion we said, with respect to the item of damage of $30.24 for failure to load the cars to their" full capacity, that the evidence was sufficient to make a question for the jury. Necessárily with that issue in the case a peremptory instruction would have been improper and we would have been compelled to have held on the first appeal had the question of a peremptory been laid before us at that time. However, since the plaintiff dismissed that item of damage upon the last trial and it is not involved upon this .appeal, it follows, therefore, for the reasons heretofore assigned, that with it out of the record, the lower court properly sustained plaintiff’s motion for a peremptory instruction.

Wherefore, the judgment is affirmed.